C-42/86

2. According to the arguments which have This dispute, particulars of which are set out been made the applicable heading may be in the Report for the Hearing, calls for the 42.02 B: Travel goods (for example, trunks, following remarks. suitcases, hat-boxes, travelling-bags, ruck- sacks), shopping-bags, handbags, satchels, briefcases, wallets, purses, toilet cases, tool 4. 1 .First of all, it must be pointed out that cases, tobacco pouches, sheaths, cases, it is not a question of the interpretation of boxes (for example, for arms, musical Regulation No 1/71, which was referred to instruments, binoculars, jewellery, bottles, in the request for a preliminary ruling, collars, footwear, brushes) and similar but — in view of the importation date containers, of leather or of composition Regulation No 2800/78, * which contains leather, of vulcanized fibre, of artificial the customs tariff which applied at the time. plastic sheeting, of paperboard or of textile fabric: . . . B. Of other materials'. Alter- natively, it is possible to consider 5. 2. As you know, the Spanish Government subheading 39.07 E IV (articles of materials and the Commission cite in support of their of the kinds described in headings 39.01 to opinion a classification opinion of 29 April 39.06 other than those referred to in 1967, adopted by the abovementioned heading 39.07 A — D. Nomenclature Committee by a large majority, according to which goods of the kind in question should be classified under 3. The respondent in the main proceedings, heading 39.07 on the ground that as far as certain French lower courts and other auth- plastic material is concerned heading 42.02

refers only to sheeting, which excludes the judgment in Case 37/75, 5 in relation to articles which are manufactured by a a Commission regulation on interpretation, process in which the sheeting is heated and it is stated that the text of the tariff may not moulded or vacuum-shaped ('formage sous be amended). vide'). They go on to point out that that point of view is supported by a unanimous decision of the Committee on Common Customs Tariff Nomenclature of September 1978 in respect of those goods, confirmed in 1980 in considering a decision to the same 8. The key issue in the present case is thus effect of the Nederlandse Tariefcommissie. whether there is anything in the wording and scheme of the Common Customs Tariff to indicate that those classification opinions are inaccurate. In my opinion, in view of all the submissions that have been made it would be difficult to say that there is. 6. Such decisions are of particular importance in cases such as this. The Court has repeatedly held that both the Expla- natory Notes on Nomenclature of the Customs Cooperation Council and classifi- cation slips issued by the Committee on 9. It cannot be said that there are Common Customs Tariff Nomenclature are compelling reasons in the wording and valid aids to the interpretation of the scheme of the tariff which argue against Common Customs Tariff 2 because, as was assignment of the suitcases in issue to stated in the judgment in Case 2 3 7 / 8 1 3 in heading 39.07. As well as the articles respect of the Community Explanatory referred to under subheadings E I to E III it Notes, they supply the element of certainty covers other articles of materials of the needed to ensure the uniform application of kinds described in headings 39.01 to 39.06, the Common Customs Tariff. and it is significant that the Explanatory Notes of the Customs Cooperation Council state in that connection that the heading covers a wide variety of other articles, in particular articles which are shaped, that is to say, produced by a manufacturing 7. Although such opinions are not binding process which was used for the articles at in law (as was emphasized in the judgment issue in the main proceedings. in Case 798/79 4 ), they are to be disre- garded as an aid to interpretation only if they alter the scope of the Common Customs Tariff and are therefore incom- patible with it (judgment in Case 798/79; in 2 10. Furthermore, it cannot be said that the — See, for example, the judgment of 15 February 1977 in wording of heading 42.02 compels one to Joined Cases 69 and 70/76 Dittmeyer v HauptzoUamt Hamburg-Waltershof [Ì177} ECR 231, paragraph 4 at p. the conclusion that it includes products such 238, and the judgment of 26 September 1985 in Case 166/84 Tbomasdünger GmbH v Oberfinanzdirelttion as those in issue here. With regard to the Frankfurt am Main [1985] ECR 3001. material used, it should not be overlooked 3 — Judgment of 23 September 1982 in Case 237/81 Almadeni that this very detailed heading (the Expla- v HauptzoUamt Mainz [1982] ECR 2981, paragraph 9 at p. V 2989. 4 — Judgment of 11 July 1980 in Case 798/79 HauptzoUamt 5 — Judgment of 11 November 1975 in Case 37/75 Bagusat v Köln-Rhtinauv Chem- Tec [1980] ECR 2639. HauptzoUamt Berlin-Packhof[l975] ECR 1339.

12. 3. The arguments put forward by 15.(c) The following arguments must also Artimport against that clearly well-founded be rejected: the reference to paragraph A 4 thesis are not conclusive. of the General Rules ('Goods not falling within any heading of the tariff shall be classified under the heading appropriate to the goods to which they are most akin') ; the contention that no support for classifying 13.(a) That is true first of all of the suitcases under Chapter 39 of the Common contention that heading 42.02 lists not only Customs Tariff is to be found in the articles of soft material ('akin to leather', as Nomenclature of goods for the external the Spanish Government not very aptly trade statistics of the Community and stat- said), but also, as the mention of vulcanized istics of trade between Member States fibre and paperboard shows, articles of rigid (Nimexe); and the argument based on the material (a point made in the judgment of requirements of legal certainty, which it is the cour d'appel, Rouen). Although the said would be adversely affected if products correctness of that statement is not in doubt such as those in issue were in future to be (and accordingly the French version of the classified under heading 39.07.

DIRECTEUR GENERAL DES DOUANES ET DROITS INDIRECTS v ARTIMPORT

20. 4. It is thus clear how the question from 17. Finally, no different conclusion is to be the Cour de cassation of the French drawn from the reference to the Carlsen6 Republic should be answered, but in closing and Cleton7 judgments. Both those I should deal briefly with Artimport's judgments support the principle of interpre- suggestion that it should be stated in the tation according to which the criterion for judgment that the ruling is to have effect the classification of goods for customs only for the period after delivery of the purposes is in general to be sought in their judgment. characteristics and objective properties as defined in the wording of the relevant heading of the Common Customs Tariff and of the notes to the sections or chapters. 21. I can see no grounds for acceding to that suggestion. Apart from the fact that application by way of analogy of the second paragraph of Article 174 (that is basically what it amounts to) in the preliminary ruling procedure has until now been 18. The classification in the present case is contemplated only with regard to questions based on the assessment of those objective of validity (the present case is concerned characteristics. The function of the goods with the interpretation of Regulation No and what they are made of represent 2800/78 and thus the determination of its objective characteristics. It is true that a scope since its adoption), in my view the conflict is conceivable should the function ruling in the present case should not be of the goods, on the one hand, and the denied retrospective effect (as far as 1979) because in fact the matter is not now being 6 — Judgment of 8 December 1977 in Case 62/72 Carlien clarified for the first time; it was settled by a Verlag v Oberfinanzdirektion Köln [1977] ECR 2343, paragraph 3 at p. 2350. classification opinion as early as 1967 with 7 — Judgment of 4 October 1979 in Case 11/79 Cleton v which the practice of most Member States is Intpecteur der invoerrechten en Accijnzen [1979] ECR 3069, consistent. paragraph 14 at p. 3081.